Learn more about Peltz-Steele v. UMass Faculty Federation at Court Listener and the Liberty Justice Center. Please direct media inquiries to Kristen Williamson.

Wednesday, January 19, 2022

Family in fatal police shooting demands transparency

Fall River Police Department
Photo by Kenneth C. Zirkel (CC BY-SA 4.0)
At a rally in Fall River, Mass., on January 15, the family of Anthony Harden, who was killed by police in November, demanded transparency in the investigation into the shooting.

News reports state that Harden, 30, became involved in a physical altercation with two police officers trying to arrest him at his home.  Harden was confined to the home with a GPS bracelet while charges were pending in an assault case, WBZ reported in December.  According to police, Harden repeatedly stabbed at one of the officers with a metal object, possibly a steak knife, and the other officer shot and killed him.

Bristol County District Attorney (DA) Thomas M. Quinn III investigated and announced in December that police had complied with the department use-of-force policy, WBZ reported.  But the family has not yet seen the full record of the investigation, the Fall River Herald News reported after the "Justice for Anthony" rally on Saturday, and the family alleges inconsistencies between a private autopsy and the DA's conclusion.

In light of the police accountability movement that erupted in recent years in the United States, my Freedom of Information (FOI) Law seminar in the fall semester took up law enforcement transparency as a special topic.  Sifting the voluminous writing on police accountability in scholarly, NGO, and popular literature, I found, probably unsurprisingly, that lack of transparency is often a volatile fuel of misunderstanding and vehement distrust between people and police in these matters.  Worse, it doesn't always have to be.

At risk of generalizing to the detriment of the many, many police officers and departments that uphold the law with integrity, there remains the conventional wisdom that police are notorious for resistance to transparency.  My own youthful interest in FOI law was spurred by, and, in fact, a factor in my decision to go to law school in the 1990s was, frustration dealing with the Rockbridge County Sheriff's Office when I was a student journalist in Virginia.  

FOI "audits," occasionally carried out by media and NGOs to test state open records compliance, invariably test police, because a characteristic reluctance to comply with the law, ironically, juxtaposes so sharply with the urgent life and liberty interests of persons subject to police power.  The classic tension in this vein is nicely encapsulated by Amy Sherrill's report on police compliance for a 1999 Arkansas audit.  The piece might as well have been written yesterday; secrecy in policing is a persistent devil.

For my October class, besides some introductory material such as the law enforcement exemption in the federal FOI Act (FOIA) (subpart (b)(7)), after which the states have modeled many statutory open records exemptions, I assigned:

  • State ex rel. Standifer v. City of Cleveland, 2021 Ohio 3100 (Ct. App. Sept. 3, 2021);
  • Emanuel Powell, Unlawful Silence: St. Louis Families’ Fight for Records After the Killing of a Loved One by Police, 57 Am. Crim. L. Rev. 65 (2020); and
  • Somebody: Police, The Intercept (Apr. 14, 2020) (podcast ep. 3).

There is so much to unpack on this topic that I had to be judicious.  The Standifer case, arising from an investigation into police violence in Connecticut, frames the subject with First Amendment access implications and the balance between police transparency and the rights of persons named in police records, including police officers themselves.

I can't say enough about the Powell article.  An attorney with ArchCity Defenders, Emanuel Powell related a personal and powerful narrative with a well informed and reasoned call for reform.

The entirety of The Intercept podcast, "Somebody" season, is worth the time.  For this class, I chose the "Police" episode, especially for its audio recordings of a mourning mother, Shapearl Wells, desperately seeking answers in the death of her son, and what she faces with police who are sometimes understanding but more often defensive, guarded, and harsh with her.  The audio medium demonstrates, in a way a cold transcript could not, the communicative disconnect between Wells and police, and the insult, however unintended, of unnecessary opacity upon an already tragic injury.  Somebody was a joint project of the Invisible Institute and comes with, especially useful for secondary school, a 10-unit teaching guide

There are some fascinating online clearinghouses on police data, such as NGO Mapping Police Violence and the Invisible Institute's Citizens Police Data Project, the latter focusing on Chicago, having begun as a collaboration with the University of Chicago.  The annual program of the National Freedom of Information Coalition (NFOIC) in fall 2021 featured informative sessions on police transparency reform and tracking police misconduct records (latter trailer only).  Tomorrow, I plan to attend virtually a plenary panel of the Communications Law Forum of the American Bar Association, "Racial Injustice Exposed on Camera: Police Transparency and Government Access in a Viral World."

I am open to persuasion on the basis of what I might not know about the investigation into Harden's death.  But on the face of it, I see no reason at this point for withholding investigative records, especially the autopsy.  Law enforcement authorities sometimes fear record release because it might compromise the public's position in seemingly inevitable litigation.  But discovery will bring the evidence to light anyway, and public entities shouldn't get to hold their cards tightly when accountability for lost life is at stake.

It's especially troubling that on the Bristol County DA website, there is, at the time of this writing, not a single mention of Anthony Harden.   The last two press releases from the office, before and after announcement of the conclusion in the Harden investigation, regard sentencing in other matters, touting the DA's success.  The 11-page report on the Harden matter, described by The Herald News, I cannot find online, not at the DA's site, nor from the State Police Detective Unit that conducted the investigation.

So one might understand how the Harden family, and families similarly situation around the country, might worry that the political heads of law enforcement are concerned more with reelection than with justice.  Transparency would not necessarily solve all ills, but it might diffuse tension and enhance public confidence by some measure.

Tuesday, January 18, 2022

U.S. rental car oligopoly hits new lows, as customers alleging false arrests intervene in Hertz bankruptcy

Photo by Diego Angel CC BY 3.0
A curious story of alleged false arrests and a corporate lawyer's blunder surfaced in business media earlier this month, and the story speaks to the sad state of consumer protection in America.

In December 2021, dozens of claimants filed (no. 193) in the covid-precipitated bankruptcy of Hertz, the rental car company, alleging the reporting of rental cars as stolen, resulting in false arrests of Hertz customers by police, along with the disgrace of arrest, jailing, and other life disruptions that attend felony charges.

The claims, many recounted by CBS News, allege varied circumstances precipitating the reports of stolen cars, including poor record-keeping and misunderstandings over return times, hardly the stuff of high crime.  The claimants' theory is that Hertz essentially outsourced its (mis)management of late returns to police, disregarding the dramatic mismatch between contract enforcement and criminal justice and the ruinous consequences visited on customers.

Early in January, journalist-blogger Minda Zetlin of The Geek Gap reported a verbal gaffe in court on the part of a Hertz lawyer.  Zetlin's report was picked up by a number of outlets, including Inc.  The only recent transcript on file in the case (no. 251) is "not available" on PACER, maybe because the claimants, Hertz, and CBS News are now in a tussle over sealing, the docket suggests.  Anyway, I can't verify Zetlin's report, so I'm not going to name the lawyer here.

According to Zetlin, a Big Law lawyer representing Hertz responded in court to the allegations: "It is a fraction of 1 percent of annual police reports that are filed that turn into actual litigation claims.... We actually think the number of legitimate claims that arise out of annual rentals is a tiny, tiny, tiny, tiny, tiny, tiny fraction."

Zetlin fairly observed that even a "tiny" "number ... does not count customers who were falsely arrested but accepted an early settlement from Hertz, resolved the matter in arbitration, or simply decided they didn't have the funds or the stamina for a lawsuit."  Zetlin further opined that "[m]ost [Hertz customers] would likely prefer a car rental company where their chances of going to jail are zero, rather than just tiny."  Count me in that majority.

I can't speak to the merits of the claims.  But for my part, I have been frustrated by car rental companies' shocking embrace of the contemporary trend to forego all pretense of customer service.  This skimpflation has been exacerbated by the pandemic, but we were well on our way before 2020.

Hertz, in particular, raised my ire more than once last year.  Having been lured into Hertz's "Gold" program, I once made a reservation directly on the Hertz website, rather than running my usual price comparisons with intermediaries.  Afterward, I discovered a lower rate on USAA.  But every time I was forwarded to Hertz.com to confirm the reservation at the USAA rate, I was automatically logged in to Hertz, and the rate jumped substantially.  When I tried linking to Hertz in a private window, without logging in, I got the lower rate.  In other words, Hertz was charging me substantially more because I was a member of the "loyalty program."

When I waited on hold for hours to ask a Hertz agent to log my anonymous reservation in my Gold account, I was told it couldn't be done without elevating the rate.  An agent told me that the Gold program does not guarantee lowest rates.  Actually, it does.  So much for loyalty.

Another new practice of car rental companies is to manipulate the time of pickup and drop-off to increase the likelihood of a late fee.  A customer reserving a car for pickup has to make a ballpark estimate of the time, considering how long it might take to deboard a plane, claim bags, transfer to a ground transportation center, etc.  Reservation systems offer pickups usually in only half-hour increments, 12, 12:30, 1, 1:30 etc.  So it's an inexact science, and the rental company knows that.  Accordingly, it was once common for the companies to afford an hour's grace on the clock one way or the other.  No longer.

When I picked up a car early, Hertz, without the agent saying a word, pre-charged me a late fee on the return while giving me paperwork showing the car due back at the original return time.  When I complained, Hertz said the charge would be taken off if I returned the car earlier than the indicated time, days to the minute from my actual pickup.  Yet when I rented another car and picked it up late, my return time still did not change.  The car was due back at the same time, and I just lost the hours to my late arrival.  So whether a customer is early or late for pickup, an inevitability because of deliberate inexactness, the company wins, either time or money.  No doubt the company is betting that the small loss on one rental will go unnoticed to the customer but add up big for the cumulative bottom line.

I admit, my complaints are small potatoes, mere annoyances, compared with being jailed.  But the theme that unifies my experience and that of the claimants against Hertz is Hertz's profound indifference to the customer.

So, free market, right?  Treating a customer like an entitlement is a consumer protection problem that should solve itself when a competitor comes along and offers to do better.  (Southwest's free checked bags and transparent pricing come to mind in the airline industry.)  Part of the problem is our public officials' dereliction of duty in antitrust.  The experiences I just described also characterize the policies of Dollar and Thrifty, because, guess what, they're owned by Hertz.  Likewise, Enterprise owns National and Alamo, and Avis owns Budget and Payless.  Three "beasts" account for almost all of the U.S. rental market.

Free markets only work when the playing field is level, information flows freely, and barriers of entry to the market for new competitors are surmountable. None of those conditions holds true in our car rental oligopoly.  Rather, if the claims in the bankruptcy court are to be believed, we've come to the point that a company can jail customers in case of contract dispute and hardly fear market reprisal.

Debtors' prison must be around the next corner.

The bankruptcy case is In re Rental Car Intermediate Holdings, LLC, and CBS Broadcasting Inc., No. 20-11247 (Bankr. D. Del. filed May 22, 2020).

Monday, January 17, 2022

With DeJoy still at helm, U.S. Postal Service seems determined to demonstrate its own inutility

It looks like the U.S. Post Office is catching up on a backlog—and maybe trying to annihilate itself.

At home in Rhode Island, I was surprised this week when my cousin in Denver messaged me to report receipt of his birthday card from August.  Then my mother in Baltimore emailed to report receipt of a Halloween greeting from my daughter in Atlanta, as well as a Valentine's Day card—from February 2020.

Media reported this week that a Massachusetts widow just received the letter her husband had written to his mother from World War II Germany in 1945.  (NPR, WUSA 9.)

I was frustrated in recent weeks with inability to send a Christmas gift to a friend in New Zealand, given the Post Office's suspension of service to there, Australia, and elsewhere (furious reaction).  As if it's not already sufficiently outrageous that it costs $25 to $40 to send a small box.  The USPS blamed the suspension on covid-related shipping cancellations. 

I could be mistaken—I can't confirm this—but I thought that some years ago, the USPS eschewed ground shipping for all international mail (save hazards, animals, and the like), preserving only priority air.  No-hurry ground vanished, and rates spiked to their present levels.  So how can it be that shipping cancellations have caused service suspensions?

Planet Money recently tried to explain how Amazon manages "free shipping" thanks to scale.  I was utterly unconvinced.  No matter how much cost savings is realized by volume, negotiation, and incorporation into price, I find ordinary commodities such as my daily vitamins still cheaper on Amazon than my local big-box retailer, which should have some of those advantages, too.  Anyway, no one paid $40 to ship my $10 product in a bigger-than-medium box.  I smell corporate subsidies....

Meanwhile in Washington, D.C., Louis DeJoy persists in office as Postmaster General.  Supposedly making the Post Office run in the American market tradition seems to mean disregarding the needs of people in favor of the profit margins of corporations, if not diverting public revenues to pad the latter.

I have come to suspect that DeJoy's whole undertaking is to turn the Post Office into such a parody of itself that Americans, in their outrage, abolish the institution.  Corporations, in the sparse numbers to which our antitrust regulation seems blind, will be left to occupy the field and fix prices that effectively kill off the nuisance of personal correspondence for good.  Transportation channels will be left to commerce and commerce above all else.

I guess that is the American way.

Friday, January 14, 2022

RIP Andrew Jennings, legendary investigative sport reporter who exposed corruption in FIFA, IOC

Andrew Jennings testifies in a Brazilian legislative probe  of the national football
federation (photo by Waldemir Barreto/AgĂȘncia Senado CC BY 2.0).
A pause today to take stock of the work of investigative reporter and anti-corruption advocate Andrew Jennings, publisher of Transparency in Sport, who died on January 8.

Jennings was a tireless and cantankerous thorn in the side of Big Sport.  It would be difficult to overstate the role he played in precipitating the sea-changing revelations of corruption in the administration of the Olympics and international football.  He broke new ground with his books, The Lord of the Rings (1992) and Foul! The Secret World of FIFA (2006).  The "fall of the house of FIFA" and boss Sepp Blatter in the 2015 corruption scandal probably would not have happened had Jennings not sewed the seeds a decade earlier.

Jennings was a prolific writer across media, his many books besides.  Notwithstanding a more-than-fair share of earned global acclaim and enmity, Jennings also was a tirelessly supportive colleague in his crusade.  Email to his blog's contact address went directly to him; he personally and kindly answered a query of mine when I was researching on sport accountability.  He penned a foreword and praise for Whatever It Takes: The Inside Story of the FIFA Way, the book (reviewed) by Australian whistleblower (and friend of The Savory Tort) Bonita Mersiades.

Andrew Jennings has been widely memorialized, e.g., Sports Illustrated. His death leaves a gaping hole in the agencies of accountability for the quasi-corporate behemoths of transnational sport.  But his work has shown the world irrevocably that corruption thrives in the dark soil of secrecy.

Saturday, January 1, 2022

Code might inevitably regulate journalism in digital age

The U.K. Information Commissioner's Office is working on a "journalism code of practice" to legislate against defamation and invasion of privacy by mass media.

Principally and ostensibly, the code is intended to bring media law into conformity with U.K. data protection law, essentially the European General Data Protection Regulation (GDPR), including the stories "right to be forgotten," or right to erasure (RTBF). On the ground, the picture is more complicated. The British phone hacking scandal and following Leveson Inquiry constitute a strong causal thread in public receptiveness to media regulation.

Cambridge legal scholar David Erdos analyzed the draft code for the INFORRM public in part one and part two postings in October.  The code incorporates media torts such as defamation of privacy and misuse of private information (MOPI), the latter a common law innovation of British courts to facilitate enforcement of data protection rights. I have posited in other venues that common law tort similarly might provide a way forward to fill gaps in information privacy law in the United States.

Journalism and data protection rights have been on a collision course for a quarter century, like a slow-motion car wreck, and the draft journalism code is a harbinger of the long anticipated impact.  Back in 1995, when the EU GDPR-predecessor Data Protection Directive was brand new, the renowned media law scholar Jane Kirtley published an article in the Iowa Law Review, "The EU Data Protection Directive and the First Amendment: Why a 'Press Exemption' Won't Work."  Kirtley foresaw data protection and the First Amendment's arguably irreconcilable differences before most U.S. scholars had even heard of data protection.

In those innocent days, journalism ethics was reshaping itself to preserve professionalism in the newly realized and anxiety-inducing 24/7 news cycle.  A key plank in the new-ethics platform was its essentiality to resist regulation.  In 2000, media law attorney Bruce Sanford published the book Don't Shoot the Messenger: How Our Growing Hatred of the Media Threatens Free Speech for All of Us.  Then in 2001, everything changed, and mass media and their consumers became engrossed by new concerns over government accountability.

In a way, the consolidation of media regulation in a generation of code could be a relief for journalism, especially on the European continent.  In an age of ever more complex regulatory mechanisms, codification can offer bright lines and safe harbors to guard against legal jeopardy.  Information service providers from local newspapers to transnationals such as Google are struggling to comply with new legal norms such as the RTBF, and there is as yet little evidence of uniformity of norms, much less convergence. Yet even if industry ultimately embraces the security of code, what's good for business is not necessarily good for wide-ranging freedom of expression. 

Courts, too, are struggling with novel problems.  For example, in late November, the European Court of Human Rights ruled in Biancardi v. Italy that RTBF de-indexing orders extend beyond search engines and bind original news publishers.  Writing for Italian Tech and INFORRM, attorney Andrea Monti fairly fretted that the decision effectively compels journalistic organizations to expend resources in constant review of their archives, else face liability in data protection law.  The result, Monti reasoned, will be to discourage preservation, manifesting a threat to the very existence of historical record.

On the one hand, it's foolish to wring one's hands for fear that journalism is being newly subordinated to legal regulation.  Tort itself is a regulatory mechanism, and defamation has been around for a long time, notwithstanding the seeming absolutism of the First Amendment.  On the other hand, media regulation by law looks nothing like the punctilious supervision of regulated industries, including the practice of law.

In my own education, I found the contrast in approaches to ethics perplexing.  In journalism school, my ethics class had been taught aptly by a religion scholar who led impassioned discussions about handout hypotheticals.  In law school, the textbook in legal profession hit the desk with a thud for what was as much a study of model or uniform code as was crim or sales.

With no "First Amendment" per se, media regulation by code is not the novelty in the U.K. that it would be in the United States.  Still, with privacy and digital rights sweeping the globe, law is poised to regulate journalism in new ways everywhere, whether through the subtlety of common law or the coercive power of civil regulation.  American courts will not be able to escape their role in reshaping fundamental rights for the digital world, as European courts are at work doing now.  Kirtley foresaw the issues in 1995, and the chickens are slowly but surely turning up at the roost.

The present ICO consultation closes on January 10, 2022.